You received a subpoena. What now?

Service of a subpoena can be a frustrating event for a business, as most are unfamiliar with the process and subpoenas often request sensitive information.

A subpoena is a document with the power of a court’s order used to compel the disclosure of information. It is the tool by which attorneys and their clients obtain information from third parties outside of their dispute. The information being sought varies depending on the type of case being litigated, as they can be related to either civil or criminal cases. These are general rules regarding subpoenas, with some examples from South Dakota, but specific rules will vary from state to state.

In addition to the standard subpoena, businesses often are served with a particular kind of subpoena called a subpoena duces tecum. These require the production of documents, whereas standard subpoenas require an appearance and testimony of those named in the subpoena.

Here is a helpful checklist every business should use if a subpoena ever shows up at the door.

Consider retaining an attorney

As mentioned, there are varieties of subpoenas with different procedures and requirements for each. It can be a complicated process, and the consequences of noncompliance can be severe. If your business does not have in-house counsel or you are an individual without an attorney, retaining an attorney is beneficial. They will guide you through the process and advise you on how to respond to the subpoena. As subpoenas are usually time-sensitive, this should be done as soon as possible after receiving the subpoena.

Determine whether to challenge the subpoena

Receipt of a subpoena does not necessarily mean you will be bound to comply by its terms. Several options are available to attempt to fight the production of documents or a court appearance. If proper grounds exist, you can move to quash the subpoena entirely, which would allow you to delay compliance until a court denies the motion. Alternatively, you may move for a protective order from the court, arguing that compliance with the subpoena would incur an undue burden or expense. These options come with risks, as you could be forced to pay for the other side’s attorney fees if your resistance is unsuccessful.

Your decision whether to challenge the subpoena often will depend on whether the attorney issuing the subpoena followed proper procedures. For example, South Dakota courts require the party serving the subpoena to tender fees and mileage costs to the subpoenaed witness if certain facts are in play. If those costs are not provided, the subpoena could be defective and compliance unnecessary.

Your attorney also will be able to assist with whether there are any specific statutes that could affect the enforcement of the subpoena. In South Dakota, there are specific statutes that affect the ways attorneys obtain information from third parties that could affect the enforcement of a subpoena.

You should review the risks of fighting the subpoena and whether or not complying with the subpoena is preferable. The documents or records being requested will have a large bearing on this analysis. Motions to quash subpoenas requesting privileged communications or records, such as those involving attorney communications or medical records, are much more likely to be successful. Certain employment records also may be protected, depending on the information contained.

Compliance

If you decide not to resist the subpoena, compliance with the subpoena’s request is the remaining step. If the subpoena requires a court appearance by one of your employees, you should notify them of the possibility that they will have to testify and on which date they should appear. All high-level officers should be notified of the potential for litigation. If the subpoena requests documents, they should be compiled and organized as soon as possible. You also should give notice to employees after service of a subpoena to ensure documents requested by the subpoena are preserved.

Risk of noncompliance

Part of why subpoenas can be concerning for businesses are the risks of noncompliance. In South Dakota and most states, noncompliance can lead to contempt of court and potential criminal penalties. Retaining an experienced attorney at the outset of this process will help you to navigate the process and avoid potential penalties.

Notify insurance company

Litigation costs often are covered by various commercial insurance policies. If you receive a subpoena, notify your insurance company immediately, and it may cover the costs you incur through litigation.